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All people have a right to self-determination. Knowledge supports and encourages that right. Ohio Legal Rights Service hopes that the information contained in this booklet will help to strengthen the practical, day-to-day exercise of the right to self-determination for all people with disabilities.
The information provided in any OLRS publication is not a substitute for legal advice. You should consult with a lawyer concerning your rights in a specific case. Contact your local bar association or visit the Ohio State Bar Association web site to find a lawyer in your area.
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Copyright © 2004 Ohio Legal Rights Service. All rights reserved.
Ohio Legal Rights Service (OLRS) would like to thank the advocates of the Choices Project for suggesting the need for this publication. We extend a special acknowledgment and thank you to Dan Loyer, Team Leader, Nursing Home Track, whose dedication and guidance inspired the work on this project.
Choices, a grantee of Ohio Developmental Disabilities Council, is comprised of consumer advocates and promotes education and advocacy for individuals who live in intermediate care facilities and nursing homes.
All people have a right to self-determination. Knowledge supports and encourages that right. Ohio Legal Rights Service hopes that the information contained in this booklet will help to strengthen the practical, day-to-day exercise of the right to self-determination for all people with disabilities.
Most of us want to make our own decisions about how to live. Making our own decisions can give us freedom and respect. In this book are things to know so you can make your own decisions as often as possible and take charge of your life. The law says you have a right to make decisions. This means that you can make up your own mind about what you want and what you want to do. Like everyone else, you can make decisions about how to live your life.
Sometimes, other people may think that you can't make decisions because you have a disability. Or sometimes, other people may think that you are not making good decisions. They may think your decisions hurt you or hurt someone else. If you can't make decisions because of your disability, the law can take away or "limit" your right to make decisions and let someone else make your decisions for you. This is guardianship.
When you can't make decisions for yourself because of your disability, the law can take away or limit your right to make decisions about how to live your life and give someone else permission to make the decisions, instead of you. This is called guardianship.
A limit on your right to make decisions made by the probate court when someone else gets permission to make decisions for your life.
A person who thinks you need a guardianship writes to the probate court to ask the probate court to make a guardianship for you, and tells the probate court the reasons why the person thinks you need a guardianship. The probate court then decides if it is a good idea to talk about a guardianship for you. If the probate court decides that it is a good idea to talk about a guardianship for you, the probate court will tell you and other people to come to court to talk about guardianship. When you and the other people come to court the probate court will listen to everyone's side of the story and then decide if you need a guardianship.
If the probate court believes that you can't make decisions because of your disability, the probate court might make a guardianship for you. A probate court might make a guardianship for you because the probate court believes:
Even though guardianship may get you what most people think you need, guardianship also takes away or limits your rights.
The law protects you, and your rights — at all times — even if you have a guardianship. The law protects you, and your rights:
If the probate court asks you to come to court, the law says the court has to follow special rules:
If you are in probate court and everyone is talking about whether you should have a guardianship, the law says the court has to follow rules on what happens in court:
If the probate court is trying to decide if you need a guardianship, the law says the court has to follow rules on how to decide:
You should know that alternatives to guardianship don't take away as many of your rights as guardianship. There are many alternatives to guardianship. Learn more about Alternatives to Guardianship.
A probate court judge should think about alternatives first, before deciding if you should have a guardianship. For example, an important alternative to guardianship is called limited guardianship. A probate court judge may decide to make a limited guardianship because you can't make one decision, or a few other decisions, but you can make most of your other decisions. A limited guardianship only takes away your right to make one or a few decisions. You keep your right to make all other decisions. Before making a guardianship, a probate court judge should think about limited guardianship.
The law says you still have rights, even if the probate court makes a guardianship for you. Your rights are important. But first, there are some things you should know about guardianship. If the probate court makes a guardianship for you, your right to make decisions will be taken away or limited, and someone else will get permission to make your decisions for you. The following are some questions and answers about guardianship.
A person called the guardian.
The probate court.
A person you know (like a member of your family, or a friend), a person you do not know, or an agency called APSI (Ohio hires APSI to be a guardian for a person with mental retardation.)
Decisions about your personal life (this is called guardianship of the person), such as
A guardianship can also make decisions about your money, property or things (this is called guardianship of the estate), such as
A limited guardian can only make decisions about one thing or a few things. The probate judge decides which decisions and writes them on a paper called an order of limited guardianship. The order of limited guardianship is very clear about what decisions a limited guardian can make. The limited guardian can only decide about the things that the Judge writes in the order of limited guardianship. (Remember that a Limited Guardianship is an Alternative to regular guardianship.)
By thinking about what is in your best interests. This means making a decision that most people would think is the right thing for you. It may not be what you like. Making decisions in your best interests is a rule the guardian has to follow. The probate court makes this rule. If you do not like a guardian's decisions you may be able to do something about it.
If you don't like your guardian's decisions you can tell the probate court or someone can tell the probate court for you.
Guardianship doesn't have to be forever. You can talk in the probate court 120 days after the court makes a guardianship for you (this is called a redetermination hearing) about why you don't need a guardian. The guardian must show that you still need a guardian. You can have help on your side. If you want, you can have a lawyer on your side to help you tell your side of the story and to stick up for your rights and if you can't afford to pay, your lawyer must be free.
The guardian has to
If the guardian does not follow the rules the probate court can take away the guardian's permission to make decisions. The court can also make the guardian give money as a promise that the guardian will do what the court thinks is right (this money is called a bond.) If the guardian breaks any laws while being a guardian (like stealing your money or property), the guardian could also face criminal charges.
The probate court:
The guardian must listen to what the probate court says because the probate court has the main say about decisions for your life. Think of the probate court as the superior guardian. Remember, if the probate court makes a guardianship for you, your right to make decisions will be taken away or limited, and someone else will get permission to make your decisions for you. Your decisions go to someone else. Because a guardianship takes away or limits your right to make decisions, guardianship can also take away freedom and respect.
There are other ways besides guardianship for you to get what you need. Alternatives to guardianship can support you to get what you need, without taking away too many of your rights. These are some alternatives to guardianship:
Remember that these alternatives to guardianship - conservatorship, payeeship or authorized representative, adult protective services for adults with mental retardation, adult protection services for the elderly, and protection orders - can support you to make your own decisions and take away fewer of your rights than guardianship.
A conservatorship allows someone else to help you handle some parts of your life because you physically cannot do it yourself. A conservatorship is
A conservatorship may be able to help you if you can make your own decisions (you are mentally competent), but you also have a physical disability that keeps you from taking care of some parts of your life (usually having to do with money). In a conservatorship, a person called the conservator will take care of some parts of your life, like:
Having a conservatorship is up to you. You ask the probate court for help if you want it. You choose the person who will help you. You decide what you want help with. You decide if you want the help to stop or keep going.
A representative payeeship or other authorized representative program is a way to help you take care of your benefit money (like social security or retirement) for those times you can't do it by yourself because of a physical or mental disability. Having a representative payeeship or an authorized representative as your payee may make it easier for you to take care of your benefit money so it pays for your basic needs like food, a place to live and clothing. A representative payeeship or an authorized representative may help you if you get any of these benefits and you have trouble taking care of the benefit money because of your disability:
You or anyone else can say that you need help to take care of your benefit money and ask the government agency that gives the benefit money to make a representative payeeship or an authorized representative program for you.
The government agency that gives the benefit money decides if you need a payeeship according to its own special rules. These are some of the government agencies that make representative payeeships:
In a representative payeeship, or an authorized representative program, a person called the payee will take care of your benefit money. The payee must:
Changes in your life can be things like:
These changes might change how much benefit money you get.
If you live in a nursing home (or other institution), your benefit money can be used to pay for your care there (benefit money pays for the usual charges of care), but a payee should use at least 30 dollars each month to spend on your personal needs or to save for you. A special rule for nursing home payee is if your payee is the nursing home or other institution and the payee puts your money together with other people's money, the payee must use at least 30 dollars each month on your personal needs or save it for you.
A payee must follow strict, special rules to take care of your money. These rules help keep your benefit money safe. If you give someone a power of attorney (permission) to take care of your benefit money, that person does not have to follow these rules. So, because the payee has to follow the special rules, it may be safer to have a payee help you than it is to give someone a power of attorney to help you.
There are protective services available for adults with mental retardation (MR) or developmental disabilities (DD). This extra help, called services, can keep you from being hurt, or can keep you from being forgotten or ignored or can keep you from being taken advantage of. Usually, to get the help (services), you have to say it is OK with you and you get to choose the kind of help you want.
When someone hurts your body or your mind, or is mean to you or insults you, that is called abuse. When someone forgets to give you what you need to be healthy and safe, or just ignores what you need, that is called neglect. When someone takes advantage of you (for example, to get money), that is called exploitation. Protective services for adults with MR or DD may help you if you are an adult who has mental retardation or a developmental disability and you are being hurt (abused) or you are being forgotten or ignored (neglected) or you are being taken advantage of (exploited) and you need help (services.) Protective services for adults with MR or DD may be things like:
The local county board of mental retardation and developmental disabilities handles getting adult protective services for adults with MR or DD. The county board makes a plan of the services that may help you, writes it on paper, and then asks you if you want the services. If you want the services, you can say yes by signing the plan. You can say yes for yourself even if you have a guardian. A court may order protective services for adults with MR or DD. A court can order services for an adult for up to 12 months if that adult is being hurt, forgotten or ignored or take advantage of and needs protective services, but can't make decisions (the court believes the adult lacks capacity to make decisions.)
Adult protective services for the elderly provide extra help for people who are 60 years old or older who are being harmed or may be harmed later because they can't protect themselves and don't have anyone else to protect them. Adult protective services may make it easier for you to:
A court can order these services for you for 14 days, but even so, you do not lose the right to make other decisions in your life. Adult protective services for the elderly may help you if you are 60 or older and if:
Adult protective services for the elderly may be things like:
If your county has enough money to pay for them, you may be able to get services like these.
There are things to help you stay safe if a person is hurting you without taking away your right to make decisions. Two things are temporary protection order and domestic violence protection order.
A protection order is a paper that a judge makes that says that someone who has hurt you before, or someone who said they are going to hurt you in the future, has to stop hurting you or has to stay away from you or not talk to you or call you or else the police will arrest them. A protection order may help keep you safe from a person who lives with you or from a member of your family. There are 2 kinds of protection orders.
There are many ways to take charge of your life - the information in this book can help you protect your freedom to make your own decisions.
Ohio Legal Rights Service is funded in part by, and prepared this publication with, grants under the following federal laws:
Ohio Legal Rights Service does not discriminate in provision of service or employment because of race, color, religion, sex, sexual orientation, national origin, military service, disability, or age.